Berlin v. Berlin

54 Cal. App. 3d 547, 126 Cal. Rptr. 746, 1976 Cal. App. LEXIS 1153

• Court: California Court of Appeal
• Decided: January 20, 1976
• Docket: Civ. No. 46674
• Status: Published

Opinions

Opinion

KINGSLEY, Acting P. J.

I

This is an appeal from a portion of an interlocutory decree of dissolution, which portion awards $10,000 each to the trial counsel for the appellants in their dissolution proceeding. Although the notice of appeal is executed, in propria persona, by both Gloria and Morton, no appearance on Morton’s behalf has been made in this court. However, since a reversal of the portion of the award to Gloria’s attorney would, under the circumstances of this case, affect the award to Morton’s counsel, Morton’s nonappearance does not result in a dismissal of the appeal by him. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 132, p. 4128.)

II

The Berlins were engaged in what the record makes clear was a bitter dispute over the division of a large amount of community property. After several days of negotiating conferences in the chambers of the trial court, the attorneys announced that they had reached a stipulation that was acceptable to Morton and was acceptable to Gloria “with the exception of the court fixing attorneys’ fees and costs.” Thereafter, counsel for Morton proceeded to read into the record the proposed stipulation referred to. After reading a long stipulation covering spousal support, child support and the division of various assets, the proposed stipulation then recited the existence, as community property, of several savings and loan accounts, totaling $136,556.53. There followed the ensuing language:

“The proceeds of the above accounts shall be disbursed as follows:

“To Robert F. Johnson, petitioner’s attorney, the sum to be determined by the court as fees and the sum of $785 as court costs.

“To Irwin Buter, respondent’s attorney, the sum to be determined by the court as fees and the sum of $614 as court costs.”

After a discussion concerning other matters in the proposed stipulation, the trial court turned its attention to Gloria’s reservation about the fixing of attorney fees. In a colloquy extending over several pages of the transcript, the trial court explained to Gloria, several times, that, if she accepted the proposed stipulation as read, the trial court would fix the fees, to be paid out of the community property. At her request, a recess was called. After the recess, the trial court made the following statement:

“The Court: All right. Before we proceed with that I wish to make one observation so that it’s clear just what the situation is and so that there is no misapprehension with respect to the candor of the court.

“I have met with counsel in chambers several times, in which we have discussed in some detail and at great length the contentions being .made in this matter with respect to primarily the division of property, but also with respect to support, and the question of the division of the community assets, the issues relating thereto, the disposition of community obligations, and in particular the question of the treatment of the requests of attorney’s fees as a community obligation. Under the law reasonable attorney’s fees are treated as a community obligation in a domestic relations matter.

“The question of the amount of time counsel have spent, the magnitude of the problems, their complexity, and the difficulties in attempting to reach a fair settlement in the matter as between the parties have all been discussed in connection with the matter of fees. The sum of $10,000 for counsel fees was proposed as a reasonable figure, and the court did indicate to counsel that it felt that in view of what appeared to be the dimensions of the case and the amount of time and effort and skill that was required in its resolution, that that appeared to be a reasonable figure.

“Now my view is that there is no right answer to most questions that come up in a matter involving relationships between parties and in particular setting amounts. There is no right amount for spousal support. There is a range of reasonable support, and there is a range within which a reasonable mind would fix attorney’s fees in a particular matter, and there is no question but that people might disagree as between the rang’e of choices in a particular case. So I want to be perfectly candid with you that that was the import of the discussion that was had.

“Since the posture of the case appears to be that the issue will be submitted to the court, I’ve indicated to counsel in. chambers that I would require from them a statement under penalty of perjury in which they would indicate to the court the precise nature of the duties performed by them, so that I can evaluate the requests that'will be made.

“Now with that understanding, Mrs. Berlin, I would again ask you, do you understand the stipulation that has been recited in court, and do you agree to it?”

After further discussion, Gloria ultimately stated that she understood the stipulation and agreed to it.

Thereafter the two attorneys submitted to the trial court, and served on both litigants, their sworn declarations as to work performed and expenses incurred. That for Mr. Johnson, Gloria’s attorney, was for fees of $11,454 and for expenses of $150.94; that for Mr. Buter, Morton’s attorney, was for fees of $12,500 and expenses of $614. The interlocutory judgment signed by the court, awarded, as we have said above, $10,000 as fees to each attorney, together with the expenses claimed.

Gloria, by new counsel, moved to quash a writ of execution theretofore issued to Mr. Johnson in an attempt to collect the fees thus awarded to him. The ground stated in the motion was “that the award of attorney’s fees to Mr. Johnson are excessive and further, as appears from the Declaration Of Gloria Berlin, submitted herein, there is a serious question for this Court to resolve as to the veracity of Mr. Johnson’s Declaration for Attorney’s fees.” Gloria’s declaration, submitted in support of the motion, deals chiefly with a contention that Mr. Johnson had grossly overstated the hours devoted to the case; she also made several complaints of the manner in which Mr. Johnson had conducted the case. Appearing by the same new counsel, Morton sought to vacate and set aside the interlocutory judgment of dissolution in whole or in part. Morton’s declaration, submitted in support of his motion, dealt exclusively with the matter of alleged excessive fees. At oral argument in this court, respondent Johnson conceded that, although Gloria’s notice of motion and supporting declaration did not directly seek to set aside the portion of the interlocutory decree herein appealed from, the hearing proceeded on the assumption that Morton’s motion was available to Gloria and that Gloria’s motion was available to Morton. Under those circumstances, we treat the issue argued to us on the assumption that it was properly raised by Gloria in the trial court.

At the hearing on the motions, counsel argued at length on the grounds set forth in the two notices of motion and in the two declarations; thereafter—and for the first time in the trial court—counsel turned to the sole issue now before us; namely, whether the stipulation to which Gloria had agreed was for a maximum total of $10,000 to be divided between the two attorneys, or for a maximum fee of $10,000 for each attorney.¹ We quote the reporter’s transcript on that matter:

“Mr. Gross: Your Honor points out about the sum of $10,000 for counsel fees was proposed as a reasonable figure, and you indicated that, you had indicated to counsel that you felt that that appeared to be a reasonable amount. Now I would request that your Honor reread that statement and that paragraph very carefully, and I feel if you will, you will note there is no mention that $10,000 was to be the attorney’s fees for each attorney. On the contrary it seems quite obvious from the way the statement is stated that $10,000 is for counsel fees in the plural as a reasonable figure, and since we’re talking about counsel fees to be drawn from the community assets to be paid to counsel, the two counsel that represented the two parties, it would seem logical that the parties would have interpreted this as meaning the total figure of $10,000 as a total attorney’s fees to be shared and divided between these two attorneys in representing these two parties, and if you’ll note that this—you went on, and you went over this very carefully. Nowhere else was it ever mentioned that this was to be $10,000 for each counsel, and it was on the basis—

“The Court: Now Mr. Gross, you have the disadvantage, which is obviously unavoidable, of not having been here, but I was here. There was no question in my mind, and I say quite flatly to you that it was clear that there was no question in Mr. Berlin’s mind, nor was there any question in Mrs. Berlin’s mind that the request being made was for $10,000 for each attorney, and the reference made by the court was to that figure -as well. Now—so you know there is just no point dwelling on a point which in terms of what went on at the time of the hearing and what was explained to the parties was made quite clear.

“Mr. Gross: I can only say, your Honor, that reading the record—

“The Court: The question whether there has been a misrepresentation of time and effort put into the case—that’s different, and that’s going to depend on whether or not an adequate showing can be made that there was some misrepresentation; but to seize, as you have, upon the semantics of the court’s statement and to argue that somehow or other there was a misapprehension that we were talking about 10 for both instead of for each, I think really is to distort the clear meaning and the clear understanding that was conveyed at that time. I just want to make that clear to you because you were not here, and you were basing your argument on what you construe to bé a possible interpretation of language.

“There was no such apprehension, and I would be quite surprised if either Mr. Berlin or Mrs. Berlin would now contend that there was.” The trial court denied both motions to quash. Both spouses have appealed from that portion of the interlocutory decree awarding $10,000 attorneys’ fees to each attorney.

Gloria’s failure to raise the issue now argued to us until late in the hearing on the motions does not bar her from arguing, on this appeal from the judgment, that the part attacked was based on an invalid stipulation, but the lateness in raising that issue, and the failure to include it in Gloria’s declaration filed in support of her motion, raises serious questions as to the validity of her claim of a lack of understanding of the stipulation’s terms and effect. We note that, at no time in the trial court or here has Morton questioned the validity of the stipulation or the trial court’s interpretation and implementation thereof.

III

Gloria first argues that the trial court had no power to award attorney fees to both counsel to be paid out of the community property. The course followed by the trial court was expressly approved by this court in Wong v. Superior Court (1966) 246 Cal.App.2d 541 [54 Cal.Rptr. 782], where we said (at p. 547): “When the issue of community debts is before the court and the community property is about to be divided, there appears to be no sound reason for the court not to consider the husband’s liability to his attorney in determining the amount of community property which will remain for distribution as it would consider any other community debt which is not in dispute.” In In Re Marriage of Jafeman (1972) 29 Cal.App.3d 244 [105 Cal.Rptr. 483], the court said (at pp. 266-267): “It should be noted here, however, that although an award of attorney’s fees is independent of the division of the community property, a spouse’s liability for his own attorney’s fees may be considered in relation to the division of the community property under appropriate circumstances. In Wong v. Superior Court, 246 Cal.App.2d 541, 547 [54 Cal.Rptr. 782], it was recognized that the parties, by proper amendment of their pleadings, may request that their liability to their respective attorneys be treated as a community debt. In such a situation it is proper for the court to consider- this obligation, just as it would any other community debt which is not in dispute, in determining the amount of community property which is available for distribution.”

As we have noted, in footnote No. 1, the contention that the trial court lacked jurisdiction, in the face of the stipulation, to make an award off the top of the community cash, was expressly abandoned at oral argument.

IV

Gloria appears to contend that the trial court erred, at the hearing on the motions, in refusing to permit Gloria to testify orally as to what, her understanding was of the stipulation. The point is without merit. At the opening of the hearing, the trial court stated: “The Court: Matters such as this are normally handled on moving papers and declarations, so that I’ll hear oral argument and I’ll go over the moving papers, and then I’ll make a decision as to whether or not I can rule on the matters that are before me or whether I ought to permit further testimony in connection with the matter; but I’m just not going to open it up for that kind of procedure until I’m satisfied that it cannot be fairly determined without that kind of testimony.”

The hearing continued, the issues were argued, and the motions were submitted without further request for oral testimony. If the refusal to permit oral testimony was error (which we do not determine) it was waived by not repeating the request at the time suggested by the court.

V

Whether Gloria had misunderstood the nature and effect of the stipulation was a matter of fact. The trial court, as it pointed out, was a party to the proceedings leading up to the stipulation; it was in a position to weigh the merits of the late claim of a misunderstanding. We cannot say that it erred in determining, as it did, that there had been no misunderstanding.²

The portion of the interlocutory decree of dissolution appealed from is affirmed.

Dunn, J., concurred.

1 As we discuss below, Gloria argues in her brief that the trial court had no jurisdiction to award counsel fees to both parties to be paid out of the community property and, thus, (inferentially) that the statement of the trial, court to the contrary, above quoted, was erroneous. However, at oral argument, counsel agreed that that issue had not been raised in the trial court and that Gloria’s only contention, on this appeal, was that she had agreed only to a $10,000 total attorney fee award and not to awards of $10,000 to each counsel.

2 Since we accept the trial court’s fact finding that there was no misunderstanding, we need not. and do not, reach the arguments as to the effect of such a misunderstanding had it existed.